Author: upright

When we ask ourselves what kind of country we want to live in, one of the first thoughts we have is, “What should be allowed, and what shouldn’t?” In a nation that is governed by 23,000 pages of criminal law alone, how do we decide what laws we want to live by? It all comes down to what is written in the Constitution of the United States, and how it is interpreted through constitutional law.

What Is Constitutional Law?

No one can write a law that is in conflict with what the Constitution says, and that is where constitutional law comes in.

The Law of the Land

Constitutional law is the body of law that deals with interpreting the Constitution and applying its decrees to practice in real-life situations, some mundane and others extremely consequential. In the United States, the Constitution is the supreme law of the land. It outlines what powers the different branches of government have, and what rights the citizens have. The Constitution has the final word in all questions of how our government and legal systems work – end of story.

Murky Waters

In the real world, however, there are arguments and differing opinions over specific aspects of the Constitution, and resolving them is not always as simple as dusting off the document and checking it to see which side is getting it right. Two people (or two areas of government, or two companies, or one person and the government, etc.) can read the same document, and each can think that the law is on their side.

Furthermore, there may seem to be contradictions within the Constitution itself, which can rouse questions about enforcing existing national, state, and local laws. New laws also have to be checked for constitutionality as well.

Constitutional law aims to untangle these questions and figure out what is in line with what the Constitution says and what is not. But, what does the Constitution say?

What Constitutes the Constitution?

The Constitution is invoked every day by pundits on cable news outlets, politicians on the campaign trail, and advocates arguing their stance on one issue or another. There is much more in the text than the commonly quoted bits and pieces that turn up so often in soundbites. Here is a quick rundown of what is covered in the constitution:

The Original Seven Articles

These form the bulk of the original document, drafted by the founders in 1787 and ratified by all of the original thirteen colonies by 1789.

Articles 1-3:

The first 3 articles outline the separation of powers within the government into the legislative branch (Congress - the House of Representatives and the Senate), the executive branch (headed by the President), and the judicial branch (consisting of the Supreme Court and other judicial courts).

Articles 4-6:

These articles grant rights and define responsibilities of the individual states in what is known as federalism.

Article 7:

This allows new states to ratify the Constitution.

A Living Document

Right from the get-go, the founders got to work adding amendments to the Constitution, and we have been adding more ever since with the latest amendment being ratified in 1992.

The first ten amendments to the Constitution are known collectively as the Bill of Rights. They restrict government power and guarantee specific rights to the population. The First Amendment, for example, guarantees freedom of religion and restricts government from imposing any religion on the population. Other amendments in the Bill of Rights address gun ownership, the right to a speedy trial by jury, and protection against unwarranted search and seizure.

The remaining seventeen amendments can be grouped into three main categories:

Expansion of civil rights:

Government processes and procedures:

These address questions of how the government will go about its business and deal with things like term limits and what happens if the President is unable to carry out his or her duties.

Governmental authority:

The eighteenth amendment, banning alcohol sales in the United States (the only one to be repealed), is included here, as well as others dealing with the reach of government authority.

The Need for Constitutional Law

Clearly, there is a lot to untangle in the Constitution. To further complicate the issue, the original document was signed into law well over 200 years ago. Inevitably, situations are going to arise that cause confusion about how best to apply the letter of the law, and inevitably, there will be lawyers involved.

How to Apply the Constitution?

There are five main approaches to figuring out how best to apply the Constitution.

Look at the Text: Ideally, all you need to do is read the text and do what it says. You may need to get around some old-fashioned language and follow some complicated thought processes, but otherwise, hopefully, the answer is in the document.

Structure and Logic: Sometimes, it is helpful to consider an individual amendment in the context of the entire constitution. For example, the eighteenth and twenty-first amendments only make sense if you consider that one repealed the other. Further, if there is any lack of clarity around one of the first ten amendments, consider that as part of the Bill of Rights, it is there to enshrine the rights of citizens.

Original Intent: The question of what the Founding Fathers originally intended when writing a part of the Constitution is a common, and complicated, dilemma. It is a useful question to the extent that their intention can help clarify the law itself, but it can be difficult to find the line between what they may have had on their mind, but still chose not to enshrine into law, and what they intended the words that they actually did enshrine into law to mean. For example, if an amendment states that “any person has equal protection under the law” even though, at the time, many did not wish for women to have equal protection under the law, it may be true that many would not have wished the law to include women, thinking that “person” would be understood to refer to men only. However, the word that they chose to write was “person,” (and not “man” or “male”), which even then could be understood to include women. Therefore, we cannot say that the law should not apply to women; they chose the word “person,” and that is what we go by.

Precedent: Here you would look at what has already been decided by previous courts and apply that decision to another situation. Precedents and the thought processes behind them can shed a lot of light on the issue at hand, but should never supersede what is actually written in the Constitution.

Policy: The question here is, “What impact will this have on the real world?” This approach is a bit tricky, as here you begin with the result that you want, and try to make it work within the Constitution. This should be the last approach, taking a back seat to an impartial reading of what the document says.

Top 5 Things You Should Know About Constitutional Law

There Is Always an Issue:

At any given time, there are plenty of important issues being worked out nationally, and one way to set policy is through the courts. Look no further than the cases involving money in politics, LGBT civil liberties, and religious freedom, or the debate about online file sharing.

Court Cases Matter:

A lot of important court cases involving the constitutionality of certain laws have shaped our policy for years and affect our lives today. Here are a few you may know: Roe Vs. Wade, in 1973, held that women have a constitutional right to choice; and Miranda Vs. Arizona, in 1966, gave us the “Miranda Rights” by guaranteeing that citizens are informed of their right against self-incrimination.

But Some Are Boring:

It’s Not All About the Supreme Court:

While commonly regarded as the branch that interprets the Constitution and the place we should bring constitutional matters to be decided, the Supreme Court is not the sole guardian of our Constitution. Each branch of government is equally responsible to abide by the Constitution as they see fit, independent of the others, and nowhere in the Constitution itself does it say that the Supreme Court innately has more authority to interpret the law than the others. In fact, not only are all three branches of government bound by this responsibility but...

It's In Your Hands:

As citizens, we too have the authority to interpret the Constitution. The point is made explicitly in the first three words of the document itself, “We the People.” It is our right and responsibility to uphold the law of the Constitution by voting, jury duty, political advocacy, and all forms of civic participation.

So Get Out There!

The Constitution is one of the most important documents in our nation and guarantees us our rights and liberties. It is the backbone of our legal system, outlines how our government should work, and tells us who has the power to do what. If you have something to say about the Constitution, say it! You can get informed by viewing the Constitution itself here: https://www.usconstitution.net/const.pdf

There are so many possessions that have to be dealt with upon a person’s death. The deceased person's bank accounts, credit cards, property, vehicles, debt, jewelry, everything has to be accounted for and properly distributed to the heirs of his or her estate. A probate lawyer can be a great help to a surviving family in grief when it is time to deal with the legal ramification of property, debt, and possession post-mortem.

Will or No Will

A decedent is a person who has died. An executor is a rightful heir and decision maker for the estate of the decedent. An administrator is the person in charge of the affairs of the decedent estate when there was no will drafted. If a living will was established, the probate process will be much less painful than if there was no will.

When someone dies with a will, the estate or probate lawyer can be contracted to advise the heirs on their legal rights and how the probate process works. The lawyer should be able to verify critical facts, for instance, ensuring that the deceased was not under duress at the time that he or she drafted the living will.

Intestate is the status of a deceased person that did not have a signed will for the surviving family members, heirs, and attorneys to use in probate. Each state has its own intestacy laws regarding property, no matter what the deceased wishes. Typically, under most states' intestacy laws, the surviving spouse receives all property and assets.

Other family members may hire a trust lawyer to contest this if the spouse was estranged or not deemed fit to heir these possessions. Without contest, whether the administrator of the estate hires a lawyer or not, the assets and property will be distributed according to the particular state law.

Without a living will, an estate administrator will need to procure renunciations from other proposed heirs to the estate. These renunciations are agreements from the other heirs that they legally release their rights to administer to the estate, and the administrator will carry on the business of the estate solely and fairly. An administrator may also choose to hire a lawyer at this stage to file their renunciation statements with the state probate court. From here a lawyer will also assist with the administration of estate probate processes like securing and appraising property, paying debts, clearing debts, managing estate funds, etc.

What Is Probate?

Probate is the process of distributing assets and property to the descendants of the deceased. Part of the probate process is clearing debt, paying taxes and managing liquid assets on behalf of the estate, the estate heirs and beneficiaries. The more valuable an estate is the more likely you are to have a probate lawyer allocate those estate possessions.

What Is a Probate Lawyer?

A probate lawyer is an attorney that handles estate planning, wills, and legal manners concerning an estate of a deceased person.

When to Use a Probate Lawyer?

Sometimes things get messy in probate, especially with large estates. A good estate lawyer can clean up that mess and protect the rightful heirs. Many people are not aware of how many claims are made in probate court against any estate. Sometimes creditors are not as forgiving as one would expect in times of death and they have the legal right to file a claim against an estate to recuperate the entirety of their debt. These things are foreign to most layperson so the administration of a trust lawyer is advised in those instances. The goal of the heirs and the estate lawyer should be to fulfill the wishes of the deceased.

For the Living

While living, you should hire an estate lawyer to draft a legal will according to your specifications. This will help your heirs when you become a decedent by creating a legal document permissible in probate court that is unlikely to be challenged. Sometimes family members are not all on one accord, a lawyer can reduce the friction of having to decide who gets what when it is time to divide the family possessions.

Probate is usually a slow process. With so many possessions to account for, document, and assess, the process can last well over a year. An effective lawyer will alleviate all the obstacles that stand in the way of the decedent wishes being carried out in probate court.

Many questions will arise during the probate process and the court clerks are not always as helpful as one would like them to be. When you have a probate lawyer, they will get all of your questions answered, either from their experience in the field or by leveraging their relationship with the court and its clerks to offer you the answers you seek. A good lawyer will walk you through the details of the process so he or she is sure you understand all things occurring during the probate process.

All the filing and technical details will be the lawyer's job to inform and explain to you, while handling them for you. Mistakes get made and you do not want to extend the long and stressful probate process by making those mistakes in your time of grief. You are paying the lawyer to file all the proper paperwork without making the mistakes that cost time and resources.

As an Executor

As an executor or administrator of an estate you have to continue to handle your personal business while making sure the business of the decedent does not interfere with the probate process. Your lawyer will be used in this instant to pay bills, settle debt, and clear taxes. According to probate laws, an estate has a designated amount of time to settle debt. Your lawyer should ensure that you meet all these deadlines.

Your lawyer will also protect you as an executor or administrator of an estate from getting sued by your fellow beneficiaries. A lawyer cannot prevent a lawsuit directly, but by making sure you are on top of the details in the probate process, the chances of getting served with a lawsuit are minimal.

​

How to Hire a Probate Lawyer

When hiring a service as vital to your family as a probate lawyer, you should first ask friends and family for a referral

If you do not get a contact from your circle of influence you should do a google search and only value sites that offer customer testimonials

Google itself has a 5 star system and comments from customers, however, Google is not usually abundant with ratings

Facebook pages: If you are very precocious you can message some of the people that left reviews and ask them about their experience with the particular lawyer

Avvo is also a quality resource in your search for a qualified and experienced probate lawyer

How to Avoid Probate

In some rare occasions you can plan your estate to prevent having to go through the probate process. In many instances this will require an estate or trust lawyer. However, these options are not available for the heirs of an estate. If you want to save your family time, money, and energy, choose from the list below when completing your estate planning:

Make all of your property joint ownership- when a person dies the property will automatically transfer to joint owners of property

Assign your beneficiaries for assets such as life insurance, bank accounts, retirement funds, and investments

Obtain a living trust, which protects property from having to enter into probate and passes it directly to whoever you designate

Conclusion

The probate process can be long, drawn out, and emotionally draining. You can outsource this work to a lawyer who will provide experienced counsel and carry out your wishes concerning your estate. A probate lawyer is not a necessity, however, a probate lawyer can save you a lot of time in probate court and take a load of stress from your shoulders.

Whether you are estate planning for your family after you are no longer here or if you are the executor of an estate and want to make sure you do right by your family, it is a good call to consult with a probate lawyer. Some estate lawyers can give you enough guidance in one consultation for you to be able to hire them or have the steps to plan your will, estate, or distribute the assets to your family without using legal representation. Every family is different, and each has its own nuances.

Take these into account and decide whether you want to deal with probate on your own or hire that work out to a trained and certified professional. The fees associated with hiring a competent and experienced lawyer can greatly outweigh the time and energy the probate lawyer saves you. Look through our website for more tips on hiring lawyers for your specific needs.

Widelaw.com is owned and operated by Legal Data Services LLC and publishes over 700 different web based properties in 400+ markets in the United States. Legal Data Services, LLC provides lead generation marketing services for attorneys in over 1700 markets nationwide and has a comprehensive network of sites geared toward practice areas such as DUI, Bankruptcy, Personal Injury, and Criminal Law.

Legal Data Services, LLC is headquarter in Nashville TN with employees based in 41 states. We do offer health insurance, 401k, and other related benefits to our full time employees.

We are in the process of developing a larger network of websites to cover an additional 300 markets and we are hiring staff in 17 states. Please note some of our staff members are home based or telecommute positions and these type jobs are only suited for motivated employees that can work well without supervision.

Patch Legal Data Services is an equal opportunity employer. Minority’s and disabled persons are encouraged to apply. We do require criminal background checks for all applicants. Felony convictions do not eliminate applicants but they can be considered in the hiring process.

Many older people are unable to manage their daily activities as well as they oncedid. Others have disabilities that have worsened with age. Two major federal laws, theAmericans with Disabilities Act and the Fair Housing Amendments Act, protect peoplewith physical or mental disabilities from discrimination in virtually every aspect of theirlives. In addition, these laws require employers and the providers of services to modifytheir rules and policies, and physical environment, to meet the needs of persons withdisabilities.

Q. Who is protected by these laws?

A. Both the Americans with Disabilities Act (ADA) and the Fair HousingAmendments Act (FHAA), protect people with mental or physical impairments that limittheir ability to perform one or more major life activities. These activities include walking,seeing, hearing, taking care of personal or health needs or doing everyday chores. Thelaws also protect people who are perceived to have a disability, or whose family membersor friends are disabled.Neither law protects people who threaten the safety or health of others, or whosebehavior would result in substantial damage to the property of others. Nor do the lawsprotect current users of illegal drugs.

Q. What situations does the Americans with Disabilities Act cover?

A. The ADA protects people with disabilities against discrimination inemployment, public transit and public accommodations (such as hotels, restaurants, banks,schools and senior centers). It generally does not cover housing (but the FHAA does, seebelow) although it does cover some non-housing activities that are based in a housingfacility, such as meal or activity programs to which the public is invited.

Q. What situations are covered by the Fair Housing Amendments Act?

A. The FHAA applies to almost all housing transactions. Most importantly for thepurposes of this chapter, the law prohibits landlords from refusing to rent to older people,or asking them to move, simply because they need assistance with certain activities.

The law does not apply to rental buildings that contain fewer than four units, and where theowner also lives in the building. Examples of prohibited discrimination include:· refusing to rent to a family whose member has a mental illness;· requiring applicants for senior housing to provide a doctor’s letter stating that they arein good health and can live on their own;· denying a resident who uses a wheelchair or a walker access to a communal diningroom;· evicting a tenant because he or she is receiving homemaking help or other services.

Q. What does “reasonable accommodation” mean

A. Reasonable accommodations are changes in rules or procedures that arereasonable under the circumstances, and give a disabled person equal opportunity toparticipate in a specific activity, program, job or housing situation. They are veryindividualized, and can often be worked out informally by the people involved. Examplesinclude: providing large-print notices, leases or other written materials;· giving a job or housing applicant more time to fill out an application;· waiving a no-pets rule for a tenant with a mental disability who is emotionallydependent on his or her pet, or waiving a no-guest rule for a tenant who needs a live-inaide;· assisting a customer who needs help with packages, or with opening and closing doors,or even with dialing a telephone.

Q. What are reasonable modifications?

A. Reasonable modifications are changes to the physical structure of a building orproperty, which are reasonable under the circumstances, and which give a person withdisabilities equal access to the premises. Examples include:· widening doorways and installing ramps;· replacing doorknobs with lever handles;· installing grab bars in bathrooms.

Q. Who pays for these alterations?

A. In an apartment or other housing program, the landlord pays for alterations tothe common areas, such as hallways, entrances, and meeting rooms. The tenant isresponsible for the costs of modifications inside the apartment. Alterations to publicfacilities, hotels, and other programs covered by the ADA are paid for by the owner of thefacility.

Q. How do I go about getting some changes made in my apartment?

A. Although many housing providers are familiar with the FHAA, and are workingto make sure that their buildings are accessible, they may not be aware of accommodationsthat would make life easier for individual tenants. All you need to do is request thechanges; if they are reasonable, they should be honored. Remember that you areresponsible for the costs of physical alterations inside your own apartment. Also, you maybe required to return the premises to their original condition when you move.

Q. What do I do if I believe I am being discriminated against?

A. These laws can be enforced through court action or by filing a complaint withan administrative agency.If the discrimination involves housing, call the U.S. Department of Housing andUrban Development’s Fair Housing Complaint Hotline at 1-800-669-9777.If the discrimination involves employment, public accommodations,telecommunications or public transit, contact the U.S. Department of Justice, Office on theAmericans with Disabilities Act, Civil Rights Division, at 1-800 514-0301 (voice), or 1-800 514-0383 (TDD).

The federal government provides a program of basic health care insurance forolder and disabled individuals called Medicare. Practically everyone who has a workhistory and is sixty-five and older is eligible for Medicare, even those who continueworking after age sixty-five.

The federal and state governments together also provide a comprehensive medicalbenefits program, called Medicaid, for qualified low-income people. Medicare andMedicaid are not the same, though some older people qualify for both. Medicaid coveragerules vary from state to state, but Medicare is the same all over the United States.The questions that follow examine Medicare and Medicaid, as well as private“Medigap” insurance commonly used to supplement Medicare coverage. The section thenturns to long-term care benefits under public programs and under private long-term careinsurance.Since Medicare and Medicaid came into being in 1965, they have been revisedmany times. More revisions are certain. Current information is available from your localSocial Security Administration office. Other groups such as the American Association ofRetired Persons, local legal services programs, senior centers, and area agencies on agingalso provide useful information.

Q. What is the basic structure of the Medicare program?

A. The Health Care Financing Administration, a branch of the U.S. Department ofHealth and Human Services, is the federal agency responsible for administering theMedicare program. Regular Medicare has two main parts. The hospital insurance part, or“Part A,” covers medically necessary care in a hospital, skilled nursing facility, orpsychiatric hospital, home health care, and hospice care.“Part B,” or the medical insurance benefits part, covers medically necessaryphysician’s services, no matter where you receive them, outpatient hospital care, manydiagnostic tests, and a variety of other medical services and supplies not covered by PartA.The exact coverage rules and limitations are complex. The actual coveragedeterminations and payments to providers of care are handled by insurance companiesunder contract with Medicare. These insurance companies are referred to as “fiscalintermediaries” under Part A and “carriers” under Part B. They determine the appropriatefee for each service. That is why regular Medicare is referred to as a “fee for service”program.Medicare beneficiaries also have the option of joining a Managed CareOrganization (MCO) or care option permitted under “Medicare + Choice.” Managed careorganizations provide or arrange for all Medicare covered services and generally charge afixed monthly premium and small or no co-payments. They may also offer benefits notcovered by Medicare, such as preventive care, for little or no additional cost.Denials of BenefitsNever accept a denial of benefits without further questioning. Unfair denials ofMedicare benefits occur with surprising frequency. Medicare beneficiaries who appealunfair denials have a substantial likelihood of success on appeal. Your appeal rights areexplained below

Q. What does Medicare cost me?

A. Part A coverage is provided free to all individuals sixty-five and older who areeligible for social security (even if they are still working). If you are not eligible for socialsecurity benefits, you can enroll in Part A after age sixty-five, but you will have to pay asizable monthly premium.Part B is available to all Part A enrollees for a monthly premium that changesyearly. The Social Security Administration office can tell you the cost of the currentpremium. Under both Parts A and B, beneficiaries must pay certain deductibles and coinsurancepayments, depending on the type of service, unless you are enrolled in amanaged care organization. “Deductibles” are payments you must make before Medicarecoverage begins. “Co-insurance payments” are percentages of covered expenses that youare responsible for paying. These amounts can change from year to year.If you meet certain income and resource tests, your state’s Medicaid program willassist you in paying your share of Medicare costs. The income and resource tests are moregenerous than the limits for regular Medicaid eligibility, so even if you are not eligible forMedicaid, you may still be eligible for help as a “Qualified Medicare Beneficiary” (QMB)or a “Specified Low-Income Medicare Beneficiary” (SLMB).

Q. I will turn sixty-five soon, but I do not plan to retire then. Am I still goingto be able to receive Medicare benefits?

A. Yes, but you must file a written application. This can be done in two differentways. Your “initial” enrollment period begins three calendar months before your sixtyfifthbirthday month, and extends three months beyond your birthday month. You canenroll at any time during this seven-month period. Your benefits will begin on the first dayof the month in which you turn sixty-five.If you do not enroll during this time, you can enroll during the “general”enrollment period, which runs from January 1 to March 31 of each year. However, youwill pay a higher monthly premium if you delay enrollment beyond your initial enrollmentperiod.If you are working and are covered by your employer’s health insurance program,or if you are covered under your spouse’s plan, Medicare is the secondary payer after theother insurance pays. If you haven’t enrolled in Medicare and you lose the other insurance,you may sign up for the Medicare program during a “special” seven-month enrollmentperiod that begins the month the other program no longer covers you.To make sure you receive maximum coverage without penalty, talk to youremployer’s benefits office or your local Social Security Administration office.

Q. Is Medicare only for older adults?

A. No. In addition to older social security recipients, younger persons who havereceived social security disability benefits for more than twenty-four months are eligible,as well as certain persons with kidney disease.Protecting Your Rights When You Contact Public AgenciesRemember to note the name of the person with whom you speak, the date of yourconversation, and the content of the conversation. This is useful if you later need tochallenge the information provided.Signing Up for MedicareEnrolling in Medicare is no problem for most people. Everyone who is turningsixty-five and applying for social security or railroad retirement benefits is automaticallyenrolled in Medicare Part A. If you are receiving these benefits before turning sixty-five,you should receive a Medicare card prior to the month you turn sixty-five. The Medicarebenefits normally begin on the first of the month in which you turn sixty-five.If you are under sixty-five and receiving disability benefits, your enrollment inMedicare will begin automatically as soon as you have been receiving benefits for twentyfourmonths.If you are planning to work beyond age sixty-five and are covered by your employer’shealth insurance program, you must still file a written application through your localSocial Security Administration office.

Q. What does Medicare Part A (hospital insurance) cover?

A. Medicare Part A helps pay for medically necessary hospital care, skillednursing care, home health care, and hospice care as described below:

1. Hospitalization. This includes:

· a semiprivate room and board,

· general nursing,

· the cost of special care units, such as intensive care or coronary care units,

· drugs furnished by the hospital during your stay,

· blood transfusions,

· lab tests, X-rays and other radiology services,

· medical supplies and equipment,

· operating and recovery room costs, and

· rehabilitation services.

The coverage period for hospitalization is based upon a “benefit period.” A benefitperiod begins the first time you receive inpatient hospital care. It ends when you havebeen out of a hospital and have not received skilled nursing care for sixty days in a row. Asubsequent hospitalization begins a new benefit period.On the first day of hospitalization during a benefit period, the patient is responsible fora sizable inpatient hospital deductible ($776 during 2000). If you are hospitalized morethan once during a benefit period, the deductible does not have to be paid for the otherhospitalizations during the same benefit period. After the deductible, Part A pays for allcovered services through the sixtieth day of hospitalization. From the sixty-first throughninetieth day, coverage continues but the patient is responsible for a daily co-insurancepayment. After the ninetieth day, Medicare covers up to sixty extra days (called “reservedays”) during the lifetime of the patient. The patient pays a sizable co-insurance paymentduring reserve days.If psychiatric hospitalization is needed, Part A helps pay for a lifetime maximum of190 days of inpatient care in a participating psychiatric hospital.

2. Skilled Nursing Facility inpatient care following a hospitalization of at least threedays. Your condition must require on a daily basis skilled nursing or skilledrehabilitation services, which, as a practical matter, can only be provided in a skillednursing facility. You must be admitted within a short time (usually thirty days) afteryou leave the hospital, and the skilled care you receive must be based on a doctor’sorder.Most nursing home residents do not require the level of nursing services consideredskilled by Medicare. Consequently, Medicare pays for relatively little nursing home care.In addition, not every nursing home participates in Medicare or is a skilled nursingfacility. Ask the hospital discharge staff or nursing home staff if you are unsure of thefacility’s status.The coverage period for skilled nursing facility services is limited to 100 days. In abenefit period, Medicare pays for all covered services for the first twenty days. For daystwenty-one through 100, the patient is responsible for a sizable coinsurance payment.

Medicare helps pay only for “skilled” nursing home care. Medicare does not payfor “custodial” care. However, the distinction is often fuzzy, and many Medicare denialsbased on a finding of custodial care can be successfully appealed. Generally, care isconsidered custodial when it is primarily for the purpose of helping the resident with dailyliving needs, such as eating, bathing, walking, getting in and out of bed, and takingmedicine. Skilled nursing and rehabilitation services are those that require the skills oftechnical or professional personnel such as registered nurses, licensed practical nurses, ortherapists. Care that is generally non-skilled may nevertheless be considered skilled when,for example, medical complications require the skilled management and evaluation of acare plan, observation of a patient’s changing condition, or patient education services.

3. Home Health Care. Medicare covers part-time or intermittent skilled nursing care;physical, occupational, and speech therapy services; medical social services; part-timecare provided by a home health aide; and medical equipment for use in the home. BothPart A and Part B of Medicare cover some home health care. Medicare does not covermedications for patients living at home, nor does it cover general household servicesor services that are primarily custodial.To be eligible for home health care services you must meet four conditions,presented in simplified terms here. First, you must be under the care of a physician whodetermines you need home health care and sets up a plan. Second, you must behome bound, although you need not be bedridden. Third, the care you need must includeintermittent skilled nursing, physical therapy, or speech therapy. Finally, your care mustbe provided by a Medicare-participating home health care agency.The coverage period for home health care is unlimited with no deductible or coinsurancepayment (except for durable medical equipment) as long as you continue tomeet all four conditions.

4. Hospice Care A hospice is an agency or organization that provides primarily painrelief, symptom management and supportive services to people with terminal illness.Hospice services may include physician or visiting nurse services, individual andfamily psychological support, inpatient care when needed, care from a home healthaide, medications, medical/social services, counseling, and respite care for familycare-giversTo be eligible for hospice care, a patient must have a doctor certify that he or she isterminally ill (defined as a life expectancy of six months or less); the patient must chooseto receive hospice care instead of standard Medicare benefits; and the hospice must be aMedicare-participating program.The coverage period for hospice care consists of two ninety-day periods, followedby a thirty-day period, and when necessary, an indefinite extension. There are certain coinsurancepayments required under the hospice benefit, but no deductibles.

Q. What does Medicare Part B (medical insurance) cover?

A. Medicare Part B covers a wide range of outpatient and physician expensesregardless of where they are provided–at home, in a hospital or nursing home, or in a

· diagnostic tests, including X-rays and other laboratory services, as well as somemammography and pap smear screenings;

· durable medical equipment, such as oxygen equipment, wheelchairs, and othermedically necessary equipment that your doctor prescribes for use in your home;

· kidney dialysis;

· ambulance services to or from a hospital or skilled nursing facility;

· certain services of other practitioners who are not physicians, such as clinicalpsychologists or social workers;

· many other health services, supplies and prosthetic devices that are not covered byMedicare Part A (Part B also covers some home health services.)

Medicare does not cover:

· routine physical examinations;

· most routine foot care and dental care;

· examinations for prescribing or fitting eyeglasses or hearing aids;

· prescription drugs that do not require administration by a physician;

· most cosmetic surgery;

· immunizations except for certain persons at risk;

· personal comfort items and services;

· any service not considered “reasonable and necessary.”Recently, Medicare Part B began covering certain preventive services undercertain circumstances. These services include:

· certain vaccinations such as those for flu, pneumonia, and hepatitis B;

· prostate cancer screenings;

· pap smear and pelvic examination;

· mammograms;

· diabetes monitoring;

· colorectal cancer screening; and

· bone mass measurements.

A. For Part B benefits, you must pay a $100 annual deductible. Then Medicaregenerally pays 80 percent of Medicare-approved amounts for covered services for the restof the year. You pay the other 20 percent of the approved amount. There is no cap on thepatient’s share of the cost. If you are a Medicaid recipient or a qualified Medicarebeneficiary (QMB), then your physician must accept “assignment.”If a physician or other provider charges you more than the Medicare-approvedamount, then your liability depends on whether the provider accepts assignment.“Accepting assignment” means that the provider agrees to accept the Medicare-approvedamount as payment in full. This means that your liability is limited to the annualdeductible and 20 percent co-payment. If the provider does not accept assignment,generally you must pay for any excess charge over the Medicare-approved amount, butonly up to certain limits. The government presently sets the limit on physician’s charges at115 percent of the Medicare-approved fee schedule. Doctors who charge more than theselimits may be fined, and you should get a refund from the doctor.Here is an example of the difference accepting assignment can make: Mrs. Jonessees Dr. Brown on June 1 for medical care. She has already paid her $100 annualdeductible for covered Part B medical care this year. Dr. Brown charges $230 for the visit.The Medicare-approved amount for such services are $200. If Dr. Brown acceptsassignment, Mrs. Jones must pay a· $40 co-payment (that is, 20 percent of the $200 approved).If Dr. Brown does not accept assignment, Mrs. Jones must pay:· $40 plus the $30 excess charge. Her Payment = $70.Note that Dr. Brown’s actual charge ($230) is within 115 percent of the Medicareapproved amount ($200) and is therefore permissible

Doctors and suppliers who agree to accept assignment under Medicare on allclaims are called Medicare participating doctors and suppliers. You can get a directory ofMedicare participating doctors and suppliers from your Medicare carrier. The directory isalso available for your use in Social Security Administration offices, state and areaagencies on aging, and in most hospitals.

Q. How are Medicare claims filed and paid?

A. For Part A benefits, the provider submits the claim directly to Medicare’s fiscalintermediary (the insurance company). The provider will charge you for any deductible orco-insurance payment you owe. For Part B claims, doctors, suppliers and other providersare required to submit your Medicare claims to the Medicare carrier (the insurancecompany) in most cases, even if they do not take assignment. The provider will chargeyou directly for any deductible, co-insurance, or excess charge you owe. If you belong to aMedicare participating Managed Care Organization (MCO), there are usually no claimforms to be filed, nor any deductible or co-payment for any covered services, or theamount is small.

Signing Up for Medicare

Part B If you are receiving Part A coverage, you will automatically be enrolled forPart B coverage as well. If you don’t want Part B coverage, you must notify the SocialSecurity Administration. Also, anyone sixty-five and older can buy Part B coverage.Enrollment periods are similar to those for Part A. Your Part B premium will be deductedfrom your monthly social security check.

Q. What if I disagree with a Medicare decision? How can I appeal?

A. You have the right to appeal all decisions regarding coverage of services or theamount Medicare will pay on a claim. If your claim has been denied in whole or in part, itis usually a good idea to appeal, especially if the basis of denial is unclear. A surprisinglyhigh percentage of denials are reversed on appeal. In any case, the appeal will make clearthe reason for the denial.Medicare Parts A and B have different procedures for appealing and several stepsin the appeal process. After the initial levels of review, Parts A and B both include theoption of a hearing before an administrative law judge and even review by a federal courtif sufficient amounts of money are at stake.Key tips in appealing Medicare decisions:

· Denials by any Part A provider (hospital, nursing home, home health care agency, orhospice): Do not accept oral denials. You should be given a written notice ofnon coverage from the provider explaining why the provider believes Medicare will notpay for the services. This is not an official Medicare determination. You should askthe provider to get an official Medicare determination. The provider must file a claimon your behalf to the Medicare fiscal intermediary if you ask for an officialdetermination. If you still disagree, you may make use of several additional appealsteps if minimum threshold amounts of money are in dispute.

· Hospital coverage denials: Hospital coverage decisions are normally made by PeerReview Organizations (PROs). PROs are groups of doctors and other health careprofessionals under contract with the federal government to review care given toMedicare patients. When you are admitted to the hospital, you will receive a noticecalled An Important Message From Medicare that explains the role of PROs anddescribes your appeal rights. If you disagree with a PRO decision, the initial reviewwill occur very quickly, usually within three days. You cannot be required to pay forhospital care until third day after you receive a written denial of Medicare coverage.

· Part B coverage denials: These decisions will be made by the Medicare carrier. Afteryour doctor, supplier, or other provider sends in a Part B claim, Medicare will sendyou a notice called Evaluation of Your Medicare Part B Benefits. The notice tells youwhat charges were made and the amount Medicare approved and paid. It also showsthe amount of any copayments, deductibles, or excess charges that you are responsiblefor paying. The notice gives the address and telephone number for contacting thecarrier and an explanation of your appeal rights. You have six months from the date ofthe decision to ask the carrier to review it. If you still disagree, you may make use ofseveral additional appeal steps if minimum threshold amounts of money are in dispute.Always be conscious of time limits for filing appeals (normally sixty days from thedate of the notice). You may lose your rights if you wait too long. You may want to getassistance with your appeal from a legal services office or a private attorney, particularlyif large medical bills are involved. Nonlawyer volunteers and non lawyer staff members oflegal service programs help a number of people with benefit appeals without chargingfees.

Q. Do I need any other insurance coverage besides Medicare?

A. Yes. Most older persons need to purchase a supplemental (or “Medigap”) insurancepolicy to cover some of the costs not covered by Medicare. However, there are exceptions,explained below.In addition, if you can afford it, you may also want to consider purchasing a longtermcare insurance policies, because Medicare and Medigap policies do not cover longtermcare. Long-term-care insurance is discussed in the next section.

Q. Who doesn’t need a Medigap policy?

A. While most people need Medigap coverage, you may already have enough coveragewithout it if you belong to one of the four groups below:

1. If you are already covered by Medicaid, you do not need a Medigap policy.Medicaid covers the gaps in Medicare and more.

2. If you are not eligible for Medicaid, but your income is low, you may be eligiblefor help in paying Medicare costs under the Qualified Medicare Beneficiary (QMB)program. Under QMB the government will pay your Medicare Part B premiums andprovide supplemental coverage equivalent to a Medigap policy if your income and assetsfall below a qualification amount (one that is more generous than Medicaid’s).To apply contact the local office of your state Medicaid program.

3. If you get retiree health coverage through a former employer or union, youmay not need Medigap insurance. But this coverage may not provide the same benefits asMedigap insurance and may not have to meet the federal and state rules that apply toMedigap. Examine the coverage, costs, and stability of your coverage to determinewhether it is a better option than Medigap.

4. If you belong to an HMO, you probably do not need a Medigap policy, sinceHMO coverage is normally comprehensive. But do not be too quick to give up yourMedigap coverage if you are just joining a Medicare HMO. If you can afford it, keep itlong enough to be sure you are satisfied with the HMO. If you become dissatisfied withthe HMO, you have the right to disenroll from it at any time. But if you have alreadygiven up you Medigap coverage, you may not be able to get it again or get the same price.

Q. How do I find a good Medigap policy?

A. Since 1992, all Medigap insurance has had to conform to standardized benefit plans.There are ten possible standardized plans, identified as Plan A through Plan J. Plan A is acore package and is available in all states. The other nine plans have differentcombinations of benefits. Check with your state department of insurance for additionalinformation. Many states provide buyers guides.Purchase only one Medigap policy. Multiple policies will almost always provideoverlapping coverage for which you will pay twice but receive the benefit of only once. Inevaluating policies, decide which features would best meet your health needs and financialsituation. Prescription drug coverage, for example, may be right for you if you are oncontinuing maintenance medications, even though such coverage may be expensive. Whenyou compare policies of the same type (A through J), remember that benefits are identicalfor plans of the same type. For example, all type G plans have essentially the samebenefits. However, the premiums and potential for premium increases may differ greatly.

Q. When should I get a Medigap policy?

A. Buy a Medigap policy at or near the time your Medicare coverage begins, becauseduring the first six months that you are sixty-five or older and enrolled in Medicare Part B,companies must accept you regardless of any health conditions you have, and they cannotcharge you more than they charge others of the same age. After this one-time period, youmay be forced to pay much higher premiums for the same policy due to your health status.During this open enrollment period, companies may still exclude pre-existing conditionsduring the first six months of the policy.Different enrollment rules apply to persons under sixty-five who are eligible forMedicare because of disability.

Q. What if I have an “old” Medigap policy and am considering a replacement? Isthat a good idea?

A. If you have a Medigap policy that pre-dates the standardized plans (before 1992), youmay not need to switch policies, especially if you are satisfied. Some states have specialregulations allowing beneficiaries to convert older policies to a standard Medigap plan.Check with your state insurance department or health insurance counseling service fordetails.Beware of illegal sales practices. Both federal and state laws govern the sale ofMedigap insurance. These laws prohibit high pressure sales tactics, fraudulent ormisleading statements about coverage or cost, selling a policy that is not one of theapproved standard policies, or imposing new waiting periods for replacement policies. If asales agent offers you a policy that duplicates coverage of your existing policy, theduplication must be disclosed to you in writing. If you feel you have been mislead or highpressured, contact your state insurance department, your state’s health insurancecounseling program, or the federal Medicare Hotline at 1-800-MEDICARE (1-800-633-4227).

EVALUATING AMEDIGAP POLICY

Obtain a free copy of the booklet Guide to Health Insurance for People with Medicarefrom your local Social Service Security Administration or from the Consumer InformationCenter, Department 70, Pueblo, CO 81009 (719) 948-3334 or at the website at

www.pueblo.gsa.gov. This guide:

· explains how Medigap insurance works;

· explains the ten standardized plans;

· tells how to shop for Medigap insurance;

· lists addresses and phone numbers of state insurance departments of state insurancedepartments and state agencies on aging. Most states offer free insurance counselingservices.

Q. What is Medicaid?

A. Medicaid is a medical assistance program for poor older or disabled personswhose income and assets fall below certain levels set by federal and state law. UnlikeMedicare, which offers the same benefits to all enrollees regardless of income, Medicaidis managed by individual states, and the benefits and eligibility vary from state to state.

Q. Is it possible to receive both Medicare and Medicaid?

A. Yes, if you qualify for both programs. Even if you do not qualify for Medicaid,the Medicaid program may still assist you in paying for all or part of the Medicarepremium, deductibles and co-insurance payments if you meet the special income andresource tests under the “Qualified Medicare Beneficiary” (QMB) program or the“Specified Low-Income Medicare Beneficiary” (SLMB) program.

Other services may include private duty nursing; services from podiatrists,optometrists and chiropractors; mental health services; personal care in your home; dentalcare; physical therapy and other rehabilitation; prescription medications; dentures;eyeglasses; and more. In all cases, you may receive these service only from a Medicaidparticipatingprovider. As with Medicare, providers may choose whether or not toparticipate in Medicaid, and they must meet certain standards.Some states have contracted with managed care organizations to providecomprehensive care to Medicaid-eligible individuals.

Qualifying for Medicaid

Medicaid programs in each state have different standards to determine whetherneedy individuals are eligible for assistance. All states require that older adults be atleast age sixty-five, blind or disabled, and that they meet income and asset tests. Inmost states, persons eligible for Supplemental Security Income (SSI) or TemporaryAssistance to Needy Families (TANF) are automatically covered. Most states alsocover some people whose income falls below a certain level after they “spend down”their income on medical bills. Medicaid eligibility rules are so complicated that it isadvisable for older persons with low incomes or with high medical expenses to talkwith someone with expertise in Medicaid–such as a legal services lawyer, paralegal,or social worker, or a private attorney experienced in handling Medicaid issues.

Q. Does owning a home disqualify me from Medicaid?

A. No. All states exempt your home as an asset as long as you or your spouselives in it. If you must leave your home in order to receive nursing home care or otherlong-term care, the state may still exempt it, but state asset exemption rules differ fromstate to state and can be complex. Besides your home, all states allow you to keep avery limited amount of cash and personal property.

Q. What does Medicaid cost me?

A. Medicaid does not require you to pay premiums or deductibles like Medicare.Providers may not charge Medicaid patients additional fees beyond the Medicaidreimbursement amount. However, states are permitted to impose a nominal deductiblecharge or other form of cost-sharing for certain categories of services and prescriptiondrugs. No Medicaid recipient may be denied services by a participating provider becauseof the patient’s inability to pay the charge.Individuals whose income or assets exceed the state’s permissible Medicaidamount may be eligible for Medicaid only after “spending down” their income or assets toa poverty level by incurring medical expenses. These “spend down” amounts can be veryhigh, especially for nursing home residents whose income far exceeds the Medicaideligibility level but who face enormous monthly expenses for care.

Q. How do I apply for Medicaid?

A. Contact the state or local agency that handles the Medicaid program. Its namewill vary from place to place. It may be called Social Services, Public Aid, PublicWelfare, Human Services, or something similar. You can also call your local agency onaging or senior center for information.When you apply, you will have to document your financial need in detail, as wellas your residency. The application form can be lengthy and complex, but the Medicaidagency can help you complete it. If you are homebound, a Medicaid worker can be sent toyour home to help you apply. If you are in a hospital or other institution, a staff socialworker should be made available to help you apply. Don’t let inability to get to the publicagency keep you from seeking assistance. Since the start of benefits is linked to your dateof application, it is important to establish an application date as soon as you needMedicaid assistance. Almost any written request with your signature may be enough toestablish your application date, even if you have not yet completed the full applicationform. The effective date can be retroactive, up to three months.

Q. How are Medicaid claims filed and paid?

A. Medicaid providers always bill Medicaid directly. The state Medicaid programreimburses providers according to the state’s particular reimbursement formula. Providerscannot charge you additional amounts for covered services, but states may opt to chargeyou small deductibles or fees for certain items such as prescriptions.

Q. If I disagree with a decision made by my Medicaid program, what can Ido?

A. You have the right to appeal all decisions that affect your Medicaid eligibilityor services. When a decision about your Medicaid coverage is made, you should receiveprompt written notice of the decision. This will include an explanation of how you canappeal the decision. The appeal process includes a right to a fair hearing before a hearingofficer. You may need a lawyer or public benefits specialist experienced in Medicaid law.

Q. What federal programs will pay for long-term care in a nursing home?

A. Medicare does not pay for a significant amount of nursing home care. Coverageof skilled nursing care, as described above under “Medicare,” is narrowlydefined and limited to twenty days of full coverage and a maximum of eighty additionaldays with a large co-insurance payment.Medicaid, on the other hand, pays a substantial portion of the nation’s nursinghome bill (over 40 percent). Medicaid, however, pays only when most other funds havebeen depleted. Medicaid will cover nursing home expenses if your condition requiresnursing home care, the home is certified by the state Medicaid agency, and you meetincome and other eligibility requirements to receive this benefit.Many persons who normally are not eligible for Medicaid become eligible after aperiod of time in a nursing home. This happens because the high cost of nursing homecare forces many individuals to spend down their assets and income to a level thatqualifies them for Medicaid in many states. The rules and availability of this option varyfrom state to state.The Department of Veterans Affairs (VA) pays for some nursing home care forveterans in VA facilities and private facilities, but the benefit is limited to the extent thatresources and facilities are available. Priority is given to veterans with medical problemsrelated to their military service, and to very old veterans of wartime service, and very poorveterans. Contact your local VA office for more information.

Q. What if I don’t want to live in a nursing home? Are home care servicesavailable under Medicare or Medicaid?

A. Yes, but to a limited extent.The home health care benefit under Medicare focuses mainly on skilled nursing andtherapeutic services needed on a part-time or intermittent basis. The benefit is describedabove under “Medicare.”Medicaid home health care is usually quite limited, too. But in addition to homehealth, several state Medicaid programs also provide “personal care” services to Medicaideligibleindividuals who need help with normal activities of daily living, such as dressing,bathing, toileting, eating, and walking. Many states also have instituted Medicaid “waiver”programs that allow the state to use Medicaid dollars for home and community basedservices that would not normally be covered under Medicaid. These waiver programsusually target persons who would otherwise have to live in a nursing home. Some of theservices covered under Medicaid waiver programs include personal care, adult day care,housekeeping services, care coordination and management, and respite care. Respite careenables primary care-givers to take a break from their responsibilities. Check with yourlocal office on aging or department of human services about the options available in yourstate.

Q. What happens if my husband needs nursing home care but I am still ableto live independently? Will all our income and assets have to be used for his supportbefore Medicaid will help pay expenses?

A. If your spouse resides in or may be entering a nursing home, Medicaid hasspecial rules that allow the spouse remaining in the community (community spouse) tokeep more income and assets than permitted under the regular eligibility rules. Thespecifics vary from state to state, but the general structure is as follows:The community spouse can keep all income, no matter how much, that belongsexclusively to the community spouse. Joint income is another story. The state may requireall or part of joint income to help pay nursing home expenses, depending upon theparticular state’s rules.Most of the income of the nursing home spouse is considered available to pay fornursing home care. However, a portion of the nursing home spouse’s income may be keptby the community spouse as a “minimum monthly maintenance needs allowance” if thecommunity spouse’s income is below a spousal allowance figure set by the state. Statesmust establish a spousal allowance of at least 150 percent of the poverty level for a twopersonhousehold. Thus, for 2000, this calculation results in a minimum spousal allowanceof $1406 per month that could be kept by the community spouse (Alaska and Hawaii havehigher figures). States also permit the community spouse to keep a shelter allowance, ifshelter costs (rent, mortgage, taxes, insurance and utilities) exceed a specified amount.Assets or resources are treated quite differently. The state applies a two-step rule.First, Medicaid counts all resources owned by either spouse. This inventory will exclude afew resources. The excluded resources are: your home, household goods, personal effects,an automobile, and a burial fund of up to $1,500.Second, from the total countable resources, Medicaid permits the communityspouse to keep one-half, as long as the one-half falls between a specified floor and ceilingamount, adjusted yearly. If the one-half falls below the floor (about $16,824 in 2000), thecommunity spouse may keep more of the couple’s resources up to the floor amount. If theone-half exceeds the ceiling (about $84,120 in 2000), the excess will be consideredavailable to pay for the cost of nursing home care. Thus, the community spouse ispermitted to keep no more than the ceiling amount even if it equals far less than half of thecouple’s assets.Another special rule applies to your home. Even though your home is an excludedresource, the state, in limited circumstances, can place a lien against your home equal tothe amount of nursing home expenses paid. The rules are complicated and vary by state;the advice of a lawyer experienced in Medicaid law is advisable. Moreover, almost allthese rules have hardship exceptions in special circumstances.

Q. If I have assets that exceed my state’s Medicaid eligibility requirements,can I transfer these to my children or to a trust in order to qualify? After all, theseare assets I intend to leave to my children when I die.

A. The law on transferring assets before making a Medicaid application iscomplex. Such transfers can result in a period of ineligibility for Medicaid benefits.Several strategies are available to shelter or preserve some of your assets, but there are anumber of legal, financial, ethical, and practical consequences to any such transfer ofproperty. Anyone considering such transfer should seek advice from a lawyer experiencedin Medicaid law.

Q. Must children pay for parents in nursing homes?

A. There is no legal obligation for children to pay for their parents’ care. Only aspouse may be held legally responsible to help pay for the cost of nursing home care, andas a practical matter, the responsibility is often difficult to enforce against an unwillingspouse. If Medicaid enters the picture, the special rules for spousal responsibilitydescribed above will apply.Children sometimes feel pressured to help pay for a parent’s nursing home costbecause of the shortage of nursing home beds, especially Medicaid covered beds. Somenursing homes give preference to admitting “private pay” patients over Medicaid patientsbecause private-pay rates are often higher than the amount Medicaid pays. Whileadmission priority for private pay patients is permissible in some states, it is illegal inothers. In all states, federal law prohibits nursing homes from requiring a private paymentfrom families, or a period of private payment, prior to applying for Medicaid coverage.Federal law also prohibits nursing homes from requiring patients to waive their rights toMedicare and/or Medicaid.

Q. What is long-term care insurance?

A. Long-term care insurance helps pay for nursing home care and usually homecare services for a period of two or more years. Long-term care insurance is still arelatively new type of private insurance, so the features of this type of insurance continueto change frequently. For example, newer policies may cover assisted living facilities,adult day care, respite care, or other long – term care services.Most individual policies are available for purchase only to persons between agesfifty and eighty-four, and a medical screening of applicants is typically required. Notevery older person needs or can afford a long-term care insurance policy. Policies areappropriate for those with substantial income and assets to protect, and who desire to buythis form of protection against the potential costs of long-term care.Most long-term care policies are structured as indemnity policies. That is, they payup to a pre-set cap for each day of a covered service. The specific provisions of thesepolicies should be closely examined before purchasing one, since the possible conditionsand limitations on coverage can be complex.How much health insurance do I need?Some people covered by Medicare think they need several additional policies tocover Medicare gaps, specific diseases, and long-term care. That is probably not a goodstrategy. Chances are the policies would duplicate too many benefits to justify the cost.That is why insurance companies are no longer permitted to sell duplicate Medicaresupplement policies. The consumer may purchase only one of the A-J policies.The best recommendation for someone on Medicare, who is not also on Medicaid,is to purchase one good “Medigap” policy, and possibly one long-term care insurancepolicy if you can comfortably afford the cost of a good long-term care policy. Lowerincome persons are likely to qualify for Medicaid if they need long-term care, sopurchasing private long-term care insurance may be a waste of money.

Q. How are the costs of a long-term care policy determined?

A. The cost of the premium is determined in part by your age, the extent ofcoverage you purchase, and your health history. Age is clearly the single greatest factorbecause the risk of needing long-term care increases significantly with age. The premiumfor a seventy-five year old can be double or triple that for a sixty-five year old.

Q. How do I evaluate a long-term care policy?

A. Compare more than one policy side by side. Your state’s insurance departmentshould have names of companies offering long-term care insurance. Many states arebeginning to set minimum standards and consumer protection guidelines for thesepolicies. In addition, federal law provides favorable tax treatment of federally qualifieslong-term are policies — that is, policies that meet minimum federal standards.Guides for evaluating long-term care insurance may be available from your stateinsurance department or state office on aging.

Keep in mind the following tips in evaluating policies:

· Make sure your policy will pay benefits for all levels of care in a nursing home,including custodial care.

· A good policy will pay benefits for assisted living and home care, including in-homepersonal care. Personal care refers generally to help with activities of daily living, suchas dressing, bathing, toileting, eating, and walking.

· Consider whether the amount of daily benefits will be adequate now and in the future.Many policies give you a range of daily benefit amounts to choose from. Make surethe policy has an “inflation adjustor” under which benefits increase by a certainpercentage each year to keep pace with coverage. The “right” amount depends in parton the amount of assets you have to protect inflation.

· Do not assume that more years of coverage is always better. Some policies offerbenefit options of six, seven, or more years. It is possible to buy too much coverage.

· Avoid policies that exclude coverage of pre-existing conditions for a lengthy period.Six months is considered a reasonable exclusion period for pre-existing conditions.

· Policies should allow payment of nursing home or home health benefits withoutrequiring a prior period of hospitalization as a condition of coverage.

· Most policies impose waiting periods that restrict the starting time of benefits after youbegin receiving nursing home care or home care–twenty to ninety days is a commonwaiting period. A longer waiting period will lower the premium cost. First daycoverage will increase your premium.

· Be sure your policy covers victims of Alzheimer’s disease and other forms ofdementia. About half the residents of nursing homes suffer some form of dementia.

· Be sure that the premium remains constant over the life of the policy and that thepolicy is guaranteed renewable for life.

· Buy a policy only from a company that is licensed in your state and has agentsphysically present in your state. Out-of-state mail order policies often leave youpowerless to remedy problems if anything goes wrong.

A. No. The law does not obligate an employer to have a pension plan. While manysmall companies do not have pension plans, most large employers and unions do. Mostpensions are governed by rules of the Employee Retirement Income Security Act of 1974(ERISA), which sets minimum standards for pension plans that already exist and newpension plans that are created. Small companies can set up simple pension plans for theiremployees called “SEPs.” These plans require very little paperwork.

Q. Does ERISA apply to all pension plans?

A. No. It does not cover pension plans for federal, state, and local publicemployees, nor for church employees. Most ERISA provisions apply to plan yearsbeginning in 1976. As a result, it does not protect workers who stopped working or retiredbefore 1976. However, the terms of an employee’s pension plan, as well as state law, dooffer some protection.

Q. What are the different types of pension plans?

A. There are two major kinds, and they are quite different. One kind, called adefined-benefit plan, guarantees you a certain amount of benefits per month uponretirement. For example, a defined-benefit plan might pay you ten dollars a month peryear of service. Under that plan, a person who retires after ten years of service wouldreceive $100 per month in pension benefits.Under the other kind of plan, called a defined-contribution plan, the employerand/or the employee contribute a certain amount per month during the years ofemployment. The amount of the benefit depends on the total amount accumulated in thepension fund at the time of retirement. And that amount depends not only on how muchyou and your employer contributed, but on how much that money earned when it wasinvested.Typically, pension trustees invest the fund’s money in stocks, real estate, and othergenerally safe investments. If those investments do well over the years, the fund growsand your monthly benefits may be relatively high. But if the investments do poorly, thefund may not grow much or may even shrink. In that case, your monthly benefits may befar smaller. (See a later section in this chapter on the requirement that plansmake prudent investments.)Even in the defined-contribution plan, your benefit will be determined by someformula that takes into account your age, how long you worked for the employer, and howmuch you were paid.The choice of defined-benefit or defined-contribution plan is not yours to make.The employer decides.

Q. I am fifty-five years old and I want to retire now. Can I start collecting mypension at once?

A. Maybe. All pensions set a “normal” retirement age, often sixty-five. Theyusually set a minimum retirement age as well, perhaps fifty-five, sixty or sixty-two. Checkwith your pension plan administrator. You may be able to collect benefits now or you mayhave to wait until you are older. Remember that benefits are usually calculated partly onthe basis of your age. The younger you are when you retire, the smaller the benefits, butpresumably you will get them for a longer period.

Q. Do I get to choose how my pension will be paid to me?

A. Yes, to some extent.The most common type of payment is called the joint and survivor annuity. It paysthe full benefit to a married couple until one dies, then pays a fraction of the full benefit tothe survivor as long as he or she lives. The fraction typically is half or two-thirds. TheRetirement Equity Act of 1984 requires this kind of disbursement unless the worker’sspouse signs a waiver. The waiver permits payment of a higher benefit, but only as long asthe retired worker lives. When he or she dies, the benefits end and the surviving spousegets no more.The joint and survivor annuity may allow you some options. You might be able tohave benefits guaranteed for a certain number of years. For example, if the guarantee is forfifteen years, benefits would be paid as long as one or both spouses are alive. But if bothdie before fifteen years have passed since retirement, benefits would continue to be paid totheir beneficiary until the 15th year. Other guarantees might be for longer or shorterperiods; the longer the guarantee, the lower the benefit.There are some other kinds of pension disbursements as well. One pays a fixedamount for a fixed number of years, which means you could outlive your benefits and getnothing in your oldest years. Another pays all your benefits in a single lump sum whenyou retire, which could cost you a lot in income taxes.

Q. Will my pension benefits rise over the years?

A. Perhaps. Your union may negotiate cost-of-living increases with your employer.Or a non-union employer may increase benefits voluntarily. But generally your benefitsare frozen at the level they were when you retired. You will also probably be collectingsocial security benefits, however, and those benefits do rise with the cost of living.

Q. What if I get sick after retiring? Will I still have health insurance?

A. Companies are not required to continue to provide health insurance afterretirement. But when they have promised to do so, some courts are requiring them to keepthat promise. Under a 1985 federal law known as COBRA (“Consolidated OmnibusBudget Reconciliation Act”), you must be notified when you retire that you may continuecoverage, but your employer may require you to pay the premiums. Coverage generallylasts for eighteen months after you stop working, but may be extended up to twenty-ninemonths if you are found eligible for social security disability or Supplemental SecurityIncome (SSI) disability benefits. You will also be eligible for Medicare at age sixty-five orpossibly earlier if you qualify for disability under social security or SSI.

Q. Can my company’s pension plan cover some employees but not others?

A. Yes. Some companies establish pension plans only for certain kinds of workers.A plan might cover assembly line workers, for example, and not file clerks. There mightor might not be a separate plan for the clerks. But a plan cannot discriminate againstemployees who are not officers, shareholders, or highly compensated. For example, asupermarket’s plan could not include only the company’s president and top executiveswhile excluding the managers, baggers, and cashiers. The Internal Revenue Service (IRS)determines whether a plan is complying with these complicated “nondiscrimination” rules.

Q. What rules govern when an employee can participate in a pension plan?

A. ERISA sets up two criteria for when employers must permit workers to beginearning credit toward pensions. The employer must permit the earning of credit toward apension if the worker is at least twenty-one years old and has worked for the employer forat least one year. ERISA calculates a year of employment as 1,000 or more hours of workin twelve months. Once employees satisfy these two requirements, they must be allowedto begin accruing credits that will affect the amount of their pensions.Of course, as with all ERISA requirements, these are the minimums allowed bylaw. Individual pension plans can have more generous credit-earning policies. Forexample, they can permit beginning employees to start earning pension credits from theirfirst day on the job, and they can permit workers younger than twenty-one to earn pensioncredits also.

Q. Once I become a participant, how do I know what my rights are under theplan?

A. ERISA requires that participating employees be given detailed reports anddisclosures. Within either ninety days of becoming a participant or 120 days of the plan’sbeginning, the employee must receive a summary plan description. This gives details ofthe employee’s rights and obligations, gives information on the trustees and the plan’sadministration, sets conditions for participation and forfeiture, and outlines the procedurefor making a claim and the remedies available to employees who appeal claims that aredenied.A summary of the plan’s annual financial report must also be distributed. If you donot receive a summary, you should ask the plan’s administrators for it. Or you can obtainone by writing the Department of Labor, PWBA, of Public Disclosure Room, Room N-5638,2000 Constitution Ave., Washington, D.C. 20210

Q. How are years of accrual determined?

A. After you meet the participation requirements, each year you work for anemployer counts as a year of accrual time. A year is defined as 1,000 or more hours ofwork in twelve months. You can work the 1,000 hours at any time during the twelvemonth period; it need not be evenly distributed during the year. Days taken for sick leaveor for paid vacation count toward the 1,000-hour minimum.It is important to note that, depending on your company’s policy, the first year youwork for an employer does not have to count toward your years of accrual. Thus, youryears of accrual will not always equal the number of years you worked for an employer.

Q. If I stop working for an employer and later return, do I get credit for myprevious years of service?

A. That depends on the length of this break in service. An employer can discountthe years of your previous service if two conditions are met: First, your break lasts five ormore continuous years: and second, your break is longer than the years you previouslyworked for the employer. If, for example, after six years of work, you took a seven-yearbreak in service, you may be out of luck. However, an employer can have more lenientrules than the ones set out by ERISA. These rules on breaks in service are complex, so youshould consult an expert if you think they apply to you.

Q. Is my right to collect my pension guaranteed?

A. You always have the right to money you contributed to the pension fund. If youleave a company after only a few years, that money should be paid back to you in a lumpsum. If you work for the employer long enough, you will have “a vested interest” in yourpension, meaning your benefits cannot be denied even if you quit. If the total value ofyour pension is $3500 or less, your plan can require that you take it as a lump sumpayment.

Q. When are my pension rights vested?

A. Amendments to ERISA in 1989 changed the vesting rules. Now, your pensionrights must either vest completely after five years–meaning that you have a right to 100percent of the benefits you have earned–or partially after three years of service. Completevesting after five years is called cliff vesting. If you work less than five years under cliffvesting, you are not entitled to any pension benefits. Partial vesting is called gradedvesting. Under this system, your rights become 20 percent vested after three years ofservice, 40 percent vested after four years, and so on up to 100 percent vested after sevenyears.With graded vesting, you have the right to 20 percent of your earned benefits afterthree years and 100 percent after seven years. Under the other system, you have no rightsto benefits until five years, and then you have rights to collect full benefits.You do not get to choose which vesting method applies. The employer decides.

Q. I want to change jobs. May I take my pension benefits with me to my newjob?

A. Generally, if you change jobs before your pension has vested, you usually loseall the benefits you built up in your old job, although your employer must refund moneyyou put into the fund. If you change jobs after your benefits have vested, you are entitledto those benefits. You may put (or “roll over”) those funds into an IRA or some other typeof retirement program (to avoid taxation) or transfer the funds to the new employer’spension plan if possible. It is often not possible, though some unions have reciprocalagreements that allow you to change employers and transfer your benefits. There are alsosome state or nationwide pension systems that allow job changes with continuedparticipation in a unified pension program (such as Teachers Insurance and AnnuityAssociation, known as TIAA-CREF).

Q. What if I join an employer at age sixty-two and retire at age sixty-five?

A. ERISA assures older employees that their rights will completely vest at normalretirement age, regardless of the number of years they have worked for an employer.Also note that since 1988, employers have been required to make contributions tothe plan for workers aged sixty-five and over.

Q. If I retire and begin receiving my pension, can I still work?

A. Yes. You can retire, collect your pension, and work full- or part-time. However,if you work for the same employer that is paying your pension, you are limited to fewerthan forty hours a month.

Protection Against Being Fired Right Before Your Pension Vests

ERISA prohibits an employer from firing you or otherwise treating you unfairly inorder to stop the vesting of your pension rights. However, the burden is on you to showthat you were not fired for legitimate reasons but because your employer did not want toguarantee you a pension.

Q. Can my employer change an existing pension plan?

A. Yes. ERISA permits an employer to change the way in which future benefitsare accumulated. However, the employer may not make changes that result in a reductionof benefits that you have already accrued. In addition, ERISA specifically prohibits planamendments that alter vesting schedules to the detriment of employees.

Q. What protection does ERISA offer when my company is sold or takenover?

A. This area of law is not entirely clear. In a growing number of cases, “successorliability” is found and the company must continue the plan. If such liability is not found,your new employer is under no obligation to continue an existing pension plan. The newemployer can go without a plan, set up a new plan, or continue the existing plan. If thenew employer decides to continue the plan, however, ERISA requires that previous yearsof service be counted.And you still have a right to all the benefits earned under the old employer. If thenew employer abandons the plan, though, you will not continue to earn benefits.

Q. Do I have a right to know how my pension plan is investing money?

A. Yes. You should receive a summary of the plan’s annual financial report. Eachyear, a report summarizing the plan’s financial operations must be made to both theInternal Revenue Service and the Secretary of Labor.Also, ERISA requires that the people in charge of investing your plan’s money usecare, skill, and prudence and invest only in the interest of participants and beneficiaries. Arequirement for investment diversity minimizes the risk of losses. ERISA forbids severalinvestment practices. For example, the pension directors cannot invest more than 10percent of the fund in the employer’s stock or real property. They cannot personally buythe fund’s property or lend the fund’s money to their friends.

Q. What should I do if those in charge of investing my plan’s money violateERISA?

A. First, you should contact the nearest office of the U.S. Department of Labor.Then, if needed, ERISA permits you to file a lawsuit in federal court to enforce its rules.

Q. I am worried about my pension plan going broke. Do I have any protectionagainst such a disaster?

A. You might have some protection. ERISA established the Pension BenefitGuaranty Corporation (PBGC). If your company has a defined-benefit plan, it must payinsurance premiums to the PBGC. If the plan goes broke, the PBGC will pay vestedbenefits up to a certain limit, but it may not pay all you are owed. If the pension plan isstill functioning but in danger of going broke, the PBGC will step in and take control. Itwill use the plan’s remaining money and the insurance premiums paid by other plans tokeep your benefits flowing.Certain pension benefits are not covered, particularly for highly paid people andfor those who retire before being eligible for social security.If your plan is of the defined-contribution type, the PBGC will not get involved. Ifthat plan goes broke, you may be out of luck. You should keep an eye on how theadministrators are handling the fund’s money, because ERISA requires that plan trusteesact in the best interests of participants. Trustees can be sued by the Secretary of Labor orplan participants if they act improperly.

Q. When must I begin to collect my pension?

A. Each plan sets a normal retirement age. However, if you choose to retire later,you must begin collecting your pension by April 1 of the year after you turn seventy andone-half years old.

Q. Does the amount of social security payments I collect affect my pensionbenefits?

A. It might. Some pension plans allow a reduction of benefits depending on howmuch you receive from Social Security. You should check with your plan’s administrators.Under federal law, plans subtracting social security payments from pension benefits mustleave you with at least half your pension. However, the law applies only to years workedafter 1988.Claiming Your PensionEach individual plan establishes the procedure for submitting pension claims. Tofind out about your plan’s filing procedure, check the plan summary provided by youremployer. To claim your pension, follow the procedure. You should then receive adecision about your claim.

Q. If I do not agree with the decision on my claim, how do I appeal?

A. The claims and appeal processes are regulated in ERISA. The plan summary must alsocontain information on the plan’s appeal process. All plans must give written notice ofthe claim decision within ninety days of receipt of the claim. If the plan notifies youwithin ninety days that it needs an extension, one ninety-day extension is allowed. Ifyou do not receive a written decision by the deadline, consider your claim denied.If your claim is denied, the decision must give specific reasons for the denial. Youthen have sixty days to file a written appeal. The plan must make available importantdocuments affecting your appeal, and you must be allowed to submit written supportfor your claim. The plan then has 120 days to issue a written decision on the appeal.If you are still dissatisfied after going through this process, you have the right tosue in federal court to recover unfairly denied benefits. However, you may not get theopportunity to present additional evidence in court, so be sure to submit all relevantinformation and documentation in your appeal to the trustees. If you need to file acourt case, the Pension Rights Center has referral lists of attorneys with expertise inthis field. (See the resource list at the end of this chapter.)

Q. What if I die before retiring? What are my spouse’s rights to my pension?

A. If you are vested and if you have been married for at least a year, your spouse isentitled to pension benefits. Typically, he or she will receive an immediate annuity forthe rest of his or her life. However, if you and your spouse have executed a writtenwaiver of survivor benefits, your spouse will not be entitled to survivor benefits.

Q. What are a divorced person’s rights to an ex-spouse’s pension benefits?

A. In order to be eligible, the divorced person must have been married to the worker for atleast one year. The pension rights of divorced spouses are governed by state law. Inmost states, these benefits are part of the marital property divided during the divorce.If a divorced spouse is granted a share of pension benefits either through a propertysettlement or a court order, he or she can collect the appropriate sum when either· the worker has stopped working and is eligible to start collecting the pension (even ifhe or she hasn’t yet applied for it);· or the worker has reached the earliest age for collecting benefits under the plan and isat least age fifty.

IN THE PAST, most of us viewed sixty-five as the age of retirement. Today, morepeople are choosing to continue working full or part-time well into their seventies or eveneighties. Many even change their careers in later life. The contributions of older workerstestify to their vitality.

I. Age Discrimination on the JobThe Age Discrimination in Employment Act (ADEA) ensures that older workersreceive equal and fair treatment in the workplace. It protects most workers forty years ofage and older from arbitrary age discrimination while on the job. It also seeks to supportthe employment of older persons based on their ability rather than age. Seethe chapter titled “Law and the Workplace” for a detailed discussion of theADEA.

A. Yes. Sometimes problems that seem to be “legal” may be helped or prevented by other means.Many groups offer guidance and counseling for personal problems arising in marriage, child rearing,and managing finances. Private counselors or members of the clergy also may provide such help.

Q. What is a small claims court?

A. Disputes over money are common, but often the amount of money at issue does not justify hiringan attorney or using scarce judicial resources. Small claims court is a streamlined forum wherepeople can air their dispute and have it decided promptly and fairly. Most states have proceduresthat allow people to represent themselves in court if the total amount of their claim is under a certaindollar amount. The cost is minimal, procedures are simple, and there is usually little delay. Keepsmall claims courts in mind if your problem is not very complicated and your losses are relativelysmall–in the hundreds or low thousands. The next chapter provides guidance on how to file andpursue a small claims lawsuit.

Q. A friend recommended that I try a local dispute resolution center. What does thisoffer?

A. For the right kind of case, these centers can be a quick, low-cost (or free) alternative to formallegal proceedings. These online casino spielautomaten will also be discussed in the next chapter.Help From Lawyers

Q. I understand that, under certain circumstances, going to a lawyer may be unnecessary.Are there specific cases when I should see a lawyer?

A. Yes, there are matters best handled by a lawyer. While these matters are sometimes hard torecognize, nearly everyone agrees that you should talk with a lawyer about major life events orchanges, which might include:· being arrested for a crime or served with legal papers in a civil lawsuit;· being involved in a serious accident causing personal injury or property damage;· a change in family status such as divorce, adoption, or death;· a change in financial status such as getting or losing valuable personal property or real estate, orfiling for bankruptcy.

Q. Is there another way to determine whether I need to hire a lawyer?

A. Yes. One way is to look at how other Americans have answered the question. In a recent studyof Americans over the age of 18, researchers for the American Bar Association found almost halfhad used a lawyer in the past five years. The most common legal matters taken to lawyers involved· real estate transactions (12%)· drawing up a will (11%)· as a party to a lawsuit (11%)· divorce/separation (9%)· probate/estate settlement matters (6%)· child support/custody matter (5%)· draw up an agreement/contact (5%)Other fairly common matters requiring a lawyer’s help included traffic matters, insurance claims,bankruptcy, auto accidents, and being a complainant or defendant in a criminal proceeding.Source: Perceptions of the U.S. Justice System (Chicago: American Bar Association, 1999).

Breast Implant Litigation

There have been literally thousands of lawsuits filed by women who have undergonebreast implantation and now allege that the implants contributed to a wide range of healthproblems, ranging from cancer and autoimmune diseases to joint pains and interferencewith cancer detection. In addition to saying that both silicone breast implants and otherartificial implants were responsible for adverse-health effects in them, women havealleged that the implants also caused miscarriage and harmful effects in their children,some of them because they were breastfed. The suits generally say that the manufacturerswere negligent and that they knew the product was defective. Because this is a new area oftort law, it is important to contact a personal injury lawyer if you think you may have aclaim.

Q. I was injured because of a brake defect in a used car I bought. May Irecover from the dealer?

A. At least one used car dealer has been subject to a negligence action slots online for failing toinspect or discover such defects. But courts are split on whether dealers in used goodsshould be subject to strict liability. Holding them strictly liable appears to be a minorityposition.

What You Should Do If You Are Injured By a Product

Keep the evidence. If a heating fixture ruptures and injures someone in your family, keepas may pieces of the equipment as you can find and disturb the site as little as you can.Make note of the name of the manufacturer, model and serial number. Keep anypackaging or instructions. Keep any receipts showing when and where the product waspurchased. Take pictures of the site and of the injury. Make a record of exactly when theincident occurred and under what circumstances. Be sure you have accurate names andaddresses for all doctors and hospitals treating the injured victim.